We use cookies to customise content for your subscription and for analytics.If you continue to browse Lexology, we will assume that you are happy to receive all our cookies. For further information please read our Cookie Policy.

Monitoring employee communications: what's the story?

Employment law rarely makes the headlines but a recent decision of the European Court of Human Rights (ECtHR) on workplace monitoring has captured the attention of the global press, with many reports suggesting that employers now have free rein to monitor their employees' personal emails. Behind the headlines, however, the decision of Bărbulescu v Romania does not quite give employers the green light to snoop on staff and in fact follows established principles on individuals' rights to privacy in the employment context. Whilst some of the media coverage may be misleading, the decision is a healthy reminder for all employers, both in Europe and beyond, of the need for well drafted policies to allow the monitoring and review of employees' personal use of company IT systems.

In brief
Mr Bărbulescu was employed by a private company in Romania. At the request of his employer, he set up a Yahoo Messenger account for business purposes. The employer's regulations expressly prohibited the use of company equipment, including computers, for personal purposes. The employer informed Mr Bărbulescu that his Yahoo Messenger account communications had been monitored over eight days and the records showed that he had used the account for personal purposes. He denied this, saying he had only used it for professional purposes. In response, the employee presented him with a 45-page transcript of his communications on Yahoo Messenger, which included exchanges with his fiancée and brother relating to personal matters. He was subsequently dismissed for breaching the employer's internal regulations.

Following unsuccessful challenges to his dismissal in the Romanian courts, Mr Bărbulescu appealed to the ECtHR, alleging that the dismissal was based on a breach of his right to respect for his private life and correspondence under Article 8 of the European Convention on Human Rights. The ECtHR's decision was limited to the monitoring of Mr Bărbulescu's communications within the framework of the employer's disciplinary proceedings and the ECtHR sought to determine whether, in view of the general prohibition imposed by his employer, the applicant retained a reasonable expectation that his communications would not be monitored.

The ECtHR concluded that there had been no violation of Article 8 since the employer's monitoring had been limited in scope and was proportionate in the circumstances. It was not unreasonable for an employer to want to verify that its employees are completing their professional tasks during working hours. Mr Bărbulescu's employer had accessed his Yahoo account in the belief that it contained work-related messages, since it had been set up on their request for that purpose, and its access to the account was therefore legitimate. Moreover, the content of the communications that the employer found in the account was only relied on by the employer to the extent that it proved Mr Bărbulescu's breach of the prohibition on the use of company computers for personal purposes.

Practical implications for global employers
This case is a useful reminder that all employers should have clear policies in place which set the guidelines for what is acceptable use by the employee and what monitoring will occur. Proportionality was key in this case. At the same time, every country, whether in Europe or further afield, will approach the matter of employee monitoring differently in view of their domestic legislation.

A similar version of this article has been published in HR Magazine (19 January 2016).

Compare jurisdictions: Arbitration

“I enjoy the CLANZ newsstand and find it highly relevant to my job. I definitely have forwarded various articles to my colleagues on occasion where there is a point of general interest, particularly employment or IT law. I really appreciate the service, it's a quick way for me to keep up to date in a way I wouldn't otherwise have time to.”